Opinion
No. 02-CV-6004.
March 3, 2004
Robert Rogers, pro se, 96-R-2994, Woodbourne Correctional Facility, Woodbourne, New York, for plaintiff.
Kelly Ann McCarthy, Esq., Office of the New York State, Attorney General, Rochester, NY, for defendant.
DECISION AND ORDER
INTRODUCTION
Plaintiff, a prison inmate, brought this action against defendant, a former prison physician, pursuant to 42 U.S.C. § 1983, alleging that defendant acted with deliberate indifference to his serious medical needs. For the reasons that follow, defendant is granted summary judgment, and this action is dismissed.
BACKGROUND
The facts of this case were set forth in the Court's previous Decision and Order [#32], and need not be repeated in their entirety here. It is sufficient for purposes of this Decision and Order to note that at all relevant times, plaintiff, Robert Rogers ("plaintiff"), was an inmate at Groveland Correctional Facility ("Groveland"), and defendant Brian Morgan, M.D. ("defendant") was employed as a physician at Groveland On August 12, 1998, plaintiff went to Groveland's infirmary, complaining of back pain radiating into his right leg. A nurse provided plaintiff with analgesic balm. On August 24, 1998, plaintiff went to sick call requesting to see defendant, stating that his leg was continuing to bother him. Defendant advised plaintiff to stay off the leg and scheduled an appointment to examine plaintiff. On August 26, 1998, defendant examined plaintiff, noting "symp[toms] of sciatica," and that plaintiff was requesting a CT scan. Morgan requested a CT scan, and provided plaintiff with medications including Motrin and Robaxin, a muscle relaxant. On September 1, 1998, defendant also prescribed plaintiff Toradol, a non-steroidal anti-inflammatory drug. On September 16, 1998, someone indicated on plaintiff's medical chart that a CT scan had been performed, and that a report would be sent later. On September 25, 1998, plaintiff was seen by a "Dr. Dar" ("Dar"), who noted that plaintiff's CT scan report indicated "multiple disc protrusion" and "compression of nerves." That same day, September 25, 1998, Dar requested an orthopedic consultation. See, NYSDOCS Request Report of Consultation dated September 25, 1998, Defendant's First Production of Documents. Dar also prescribed a back brace and no heavy lifting, and directed that plaintiff be placed in a lower bunk in a cell close to the facility mess hall. On September 30, 1998, a nurse made the following notation in plaintiff's medical record: "Per Dr. Morgan — bed rest until seen by ortho. (awaiting scheduling)." Plaintiff also continued to receive Robaxin and Motrin. On October 1, 1998, plaintiff requested and was granted permission to attend a G.E.D. examination. On October 5, 1998, plaintiff requested that his restriction to bed rest be "rescinded," because "lying around makes back worse." Accordingly, defendant rescinded Dar's bed rest order.
This information, and that which follows, is taken from plaintiff's ambulatory health record, contained in Defendant's First Production of Documents [#21].
The signature is illegible but is clearly not defendant's.
On October 8, 1998, plaintiff filed an inmate grievance, grievance number GRVL-12648-98, which stated:
I have been having back problems for over 1½ years and I am also having problems with my legs. I already have gotten a cat scan, and it shows something is wrong with my back this was about 3 or 4 weeks ago. I was told by the medical staff that I would be seen by a bone specialist, and as of this date I still haven't been called.
The Inmate Grievance Resolution Committee ("IGRC") referred plaintiff's grievance to the facility superintendent, with the recommendation that the grievance be granted and that plaintiff "receive proper medical treatment." In response to this recommendation, the Superintendent stated:
This is a response to grievant's request to be seen by the bone specialist as stated at sick call. Grievant is advised that this matter has been investigated and the medical records reveal that grievant has been referred to an Orthopedic Specialist. The Nurse Administrator has agreed to contact the scheduling unit to ensure a prompt appointment. It is recommended that grievant address his future concerns, if any, to the Medical Unit or the Nurse Administrator. The grievance is accepted to the extent of the information contained herein.
On October 28, 1998, plaintiff went to the infirmary, inquiring when he would be seen by an orthopedic specialist, and a nurse made the following notation: "Ortho approvedawaiting scheduling." On November 3, 1998, plaintiff was examined by an orthopedic specialist. Thereafter, on November 6, 1998, plaintiff filed an appeal of the Superintendent's decision with the Central Office Review Committee ("CORC"), which affirmed the Superintendent, noting that "grievant was seen by the orthopedist on 11/3/98 and is awaiting an MRI."
Plaintiff commenced this action on January 2, 2002, claiming that defendant "violated his constitutional rights [by] failing to provide adequate medical attention to his chronic back problems that cause[d] his legs to swell and become numb." On April 10, 2003, the Honorable Jonathan W. Feldman issued a Scheduling Order [#16], directing that all discovery be completed and all motions to compel discovery be made returnable not later than July 31, 2003. On July 22, 2003, plaintiff filed and served a document entitled "Motions for Discovery," asking defendant questions such as whether he had ever been charged or convicted or a crime, whether he had ever been sued civilly for medical misconduct, and how he had come to be employed at Groveland On August 28, 2003, defendant filed a motion for summary judgment [#28], on the grounds that plaintiff had not exhausted his administrative remedies before commencing this action as required by 42 U.S.C. § 1997e(a). On September 12, 2003, plaintiff filed a motion to compel discovery [#31], concerning his discovery demand filed on July 22, 2003.
Plaintiff also requested certain information regarding medical treatment that he had apparently received while in Federal Custody. It is unclear when or why he was in federal custody, or why he believed that defendant would have this information.
By Decision and Order [#32] filed on October 16, 2003, the Court granted defendant's application for summary judgment as to all of plaintiff's claims, except an 8th Amendment claim alleging that defendant delayed having plaintiff examined by an orthopedic specialist. As to that claim, the Court stated:
[T]he Court will provide plaintiff with an opportunity to demonstrate that there is a triable issue of fact precluding summary judgment. That is, plaintiff must come forward with evidence that the delay in his being seen by an orthopedic specialist was caused by defendant, and that it amounted to deliberate indifference to a serious medical need. In that regard, plaintiff is reminded that, in order to meet his burden, he must submit a sworn affidavit and/or other evidentiary proof in admissible form. Plaintiff's failure to demonstrate the existence of a triable issue of fact will result in the Court granting summary judgment for the defendant on this claim.
Decision and Order [#32], p. 11. The Court directed plaintiff to file his response on or before November 7, 2003. Id. at 12. The Court subsequently allowed plaintiff until December 15, 2003 to file a response. Order [#34].
On December 8, 2003, plaintiff filed his response. In it, plaintiff refers to his outstanding discovery demand, but does not explain how the discovery that he requested would assist him in demonstrating a triable issue of fact as to whether or not defendant improperly delayed having plaintiff examined by an orthopedic specialist. Plaintiff also states that he has heard that defendant "has a lot of complaints against him" by other inmates. The Court has thoroughly reviewed the parties' submissions and the entire record in this case.
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, under which a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). To be liable for money damages under 42 U.S.C. § 1983, a defendant must have been personally involved in the alleged constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Personal involvement by a supervisory official may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Id. (citations omitted). A plaintiff may not rely upon the doctrine of respondeat superior to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978).
The standard to be applied in a case involving an alleged Eighth Amendment violation arising from denial of medical care is well settled:
In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to his serious medical needs. This standard incorporates both objective and subjective elements. The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensurethat the defendant prison official acted with a sufficiently culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment's prohibition on cruel and unusual punishments encompasses the deliberate failure to treat a prisoner's serious illness or injury resulting in the infliction of unnecessary pain and suffering. Because society does not expect that prisoners will have unqualified access to health care, a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. Similarly, a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability. An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety, a state of mind equivalent to the familiar standard of `recklessness' as used in criminal law.Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations and internal quotations omitted).
Applying the foregoing legal principles to the facts of this case, the Court finds that defendant is entitled to summary judgment because plaintiff has not demonstrated that his constitutional rights were violated, or that defendant was personally involved in the alleged violation. At most plaintiff has shown that he had to wait approximately one month to be seen by an orthopedic specialist after the CT scan indicated that there was a problem. Plaintiff has not provided any evidence that this delay was due to the deliberate indifference of any person. Rather, the only inference that can be drawn from the record is that officials at Groveland promptly requested an orthopedic consultation, and then had to wait for the orthopedist to schedule the appointment. And, in any event, it was Dr. Dar, not defendant, who was involved in arranging the orthopedic consultation. Moreover, as the Superintendent's response to plaintiff's grievance indicates, it was the Nurse Administrator, not defendant, who was responsible for making sure that the appointment was scheduled in a timely manner. The Court also notes that while plaintiff was waiting to be seen by the orthopedist, defendant continued to treat him for pain. Accordingly, the Court finds that plaintiff has not raised a triable issue of fact as to whether or not defendant was deliberately indifferent to his serious medical needs in connection with having plaintiff examined by an orthopedic specialist.
CONCLUSION
For the reasons discussed above, defendant is granted summary judgment on plaintiff's claim alleging that he delayed having plaintiff examined by an orthopedic specialist, and this action is dismissed.
The claim involving the alleged delay in arranging an appointment with an orthopedic specialist is the only claim that is dismissed with prejudice. The claims previously dismissed were dismissed without prejudice under 42 U.S.C. § 1997e(a).
So ordered.